Villari v. Terminix International, Inc.

United States District Court for the Eastern District of Pennsylvania · Torts

Tortsstrict products liabilityultrahazardous activitiesfraudintentional infliction of emotional distressemotional distress damagesmedical monitoring§ 402A

Facts

Terminix contracted to provide termite control services at the Villari home and in October 1983 applied Aldrin, an EPA-approved termiticide for subsurface termite control. During the treatment, a quantity of Aldrin spilled into the Villaris' basement, efforts were made to clean it up, and later air testing commissioned by the family showed Aldrin in the home. The family testified that they experienced headaches, nausea, dizziness, and malaise after the spill, and an expert toxicologist report stated those symptoms were consistent with Aldrin exposure. Terminix temporarily relocated the family during cleanup, later stopped paying hotel expenses, and disputes arose over whether cleanup was complete and whether further remediation would be performed.

Issue

Whether the Villaris had sufficient evidence to proceed on their various tort and damages theories, especially strict products liability under § 402A where the product was supplied in the course of termite-control services. The court also considered whether their other claims for ultrahazardous activity, nuisance, fraud, intentional infliction of emotional distress, punitive damages, emotional distress damages, medical monitoring, and the children's claims could survive summary judgment.

Rule

Under Pennsylvania law as predicted by this court, a defendant who supplies a product while performing a service may be treated as a seller for purposes of Restatement (Second) of Torts § 402A when the defendant is engaged in the business of supplying the product and has undertaken a special responsibility toward the consuming public. A product may be defective under § 402A because it lacks warnings about risks of foreseeable improper use, and claims for emotional distress damages and future medical monitoring based on toxic exposure require evidence of some physical injury, though not symptoms of the particular feared disease. Fraud requires a misrepresentation, fraudulent utterance, intent to induce action, justifiable reliance, and proximate damage, and punitive damages require proof that the defendant knew the nature of the risk and acted in conscious disregard or indifference to it.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Pittsburgh, Nora Kim hired Keystone Shield Pest Solutions to perform a termite-prevention treatment at her townhouse. The company chose and supplied its own chemical concentrate, applied it during the service, and advertised that its in-house specialists selected proprietary formulas for the safest results. After vapors entered the living area, Nora sued under strict products liability for failure to warn.

Which is the strongest argument that the company may be treated as a seller for purposes of strict products liability?

Explanation. The majority predicted Pennsylvania would apply § 402A to a hybrid service-product transaction when the defendant is engaged in the business of supplying the product and has undertaken a special responsibility toward the consuming public. The form of the transaction is not dispositive. The court rejected both an automatic rule covering all service providers and an all-or-nothing classification based solely on whether goods were involved. (Derived from Villari v. Terminix International, Inc. (n.d.).)